Michels v. Hodges

956 P.2d 184, 326 Or. 538, 1998 Ore. LEXIS 266
CourtOregon Supreme Court
DecidedMarch 26, 1998
DocketCC 58-93-07683; CA A88794; SC S44137
StatusPublished
Cited by15 cases

This text of 956 P.2d 184 (Michels v. Hodges) is published on Counsel Stack Legal Research, covering Oregon Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Michels v. Hodges, 956 P.2d 184, 326 Or. 538, 1998 Ore. LEXIS 266 (Or. 1998).

Opinion

*541 GILLETTE, J.

In this adoption proceeding under ORS chapter 109, the issue before the court is whether adoptive parents may plead and prove, as a substitute for the consent of one of the birth parents, that grounds for termination of the parental rights of that birth parent exist under ORS chapter 419B. The trial court held that proof of grounds for termination under ORS chapter 419B is a lawful alternative to parental consent and, having found grounds for termination under both ORS 419B.504 and 419B.506, the trial court allowed the adoption to proceed without the consent of, and over the objections of, the biological father. On appeal by father, a divided Court of Appeals, sitting in banc, reversed, holding that the existence of grounds for termination under ORS chapter 419B is not among the six alternatives to parental consent expressly set forth in ORS chapter 109 and that the court lacks authority to rewrite that statute. Michels v. Hodges, 146 Or App 128, 931 P2d 827 (1997): We allowed review and now affirm the decision of the Court of Appeals.

The facts of the case are not in dispute. Father and mother were married twice, first in 1965 and again in 1971. They had three children, two daughters who are now grown and a son, Alexander, now 11 years old, who is the subject of this adoption proceeding. Mother has had a long history of mental illness, that had a severely detrimental effect on all three children. Indeed, the trial court found that both of the daughters were “extremely disturbed young adults.” Mother and father divorced in 1987, and the parties were awarded joint legal and physical custody of Alexander. After the dissolution, the child lived primarily with mother, but also spent substantial periods of time with father.

By March 1993, mother’s condition deteriorated to such a point that she decided to put Alexander up for adoption. She signed a form consenting to his adoption and surrendered him, for the purpose of adoption, to a state-licensed adoption agency, Open Adoption and Family Services, Inc. The agency immediately placed Alexander with the Michels, a couple who desired to adopt him. In May 1993, the Michels filed a petition for adoption, alleging mother’s consent. The *542 petition was silent on the subject of father’s consent. Although the petition was not served on father, he learned of its existence and moved to dismiss the petition, based on lack of jurisdiction.

The Michels sought and were granted leave to amend the adoption petition and, in May 1994, the Michels filed an amended petition for adoption, alleging that father’s consent is not required because, “[pjursuant to 419B.504, [father] is unfit by reason of conduct or condition seriously detrimental to the child and integration of the child into his home is improbable in the foreseeable future due to conduct or conditions not likely to change” and, “[p]ursuant to ORS 419B.506, [father] has failed and neglected without reasonable and lawful cause to provide for the basic physical and psychological needs of the child for a period of at least six months prior to the filing of the petition for adoption.”

Father filed a motion pursuant to ORCP 21 to dismiss the amended petition, asserting that, because he had not consented to the adoption, any jurisdiction to proceed must be found — if at all — in one of the statutory exceptions to father’s consent found in ORS chapter 109. He argued that the grounds for termination under ORS chapter 419B do not constitute jurisdictional substitutes for his consent under chapter 109 and, furthermore, that none of the exceptions that were set forth expressly in chapter 109 was alleged in the petition for adoption. It followed, he argued, that the trial court had no jurisdiction over the matter.

The trial court denied the motion, holding that grounds for termination under ORS chapter 419B can be pleaded and proved as a substitute for the grounds set out in ORS chapter 109, thereby providing a factual basis for jurisdiction to proceed with the adoption. The case went to trial and, at its conclusion, the court found that father was unfit and had neglected the child for a period of six months preceding the filing of the petition for adoption. The court concluded that, under those circumstances, father’s consent was not necessary to the adoption. The court terminated father’s parental rights and granted the Michels’ petition to adopt the child.

*543 As noted, father appealed to the Court of Appeals, which reversed. The adoptive parents then petitioned this court for review, contending that the Court of Appeals erred in failing to follow this court’s precedents, viz., Eder v. West, 312 Or 244, 821 P2d 400 (1991); Moody v. Voorhies, 257 Or 105, 475 P2d 579 (1970); and Simons et ux v. Smith, 229 Or 277, 366 P2d 875 (1961), which, they assert, allow the pleading and proving of grounds for termination under ORS chapter 419B to operate as a jurisdictional substitute for the alternatives to a parent’s consent permitted under ORS chapter 109. In its decision below, the Court of Appeals acknowledged the existence of wording in those cases that supported the adoptive parents’ position, but labeled that wording dictum (and “incorrect dictum at that”), Michels, 146 Or App at 132, and refused to follow it. Michels, 146 Or App at 134. 1 We allowed review to examine ORS chapter 109 and to explore whether, in its previous decisions, this court has interpreted that chapter to include grounds for termination under ORS chapter 419B as an additional alternative to a parent’s consent to an adoption.

Adoption is purely a creation of statute; it was unknown at common law. Eder, 312 Or at 260; Zockert v. Fanning, 310 Or 514, 517, 800 P2d 773 (1990). This court long has held that all jurisdictional requirements of the adoption statute must be met. See, e.g., Burrell et ux v. Simpson, 203 Or 472, 474, 280 P2d 368 (1955); Williams et ux v. Capparelli, 180 Or 41, 44, 175 P2d 153 (1946) (both so holding); see also Eder, 312 Or at 260 (“In a contested adoption, the requirement that the court find by clear and convincing evidence an express statutory exception to the consent requirement is a matter of extreme importance.”).

In PGE v. Bureau of Labor and Industries, 317 Or 606, 859 P2d 1143 (1993), this court set out the statutory interpretation process that Oregon courts follow. The court recognized three levels of judicial inquiry in the search for the object of statutory interpretation, viz., legislative intent. 317 *544 Or at 610-12. At the first level of inquiry, the court examines the text and context of statutory wording. Id. at 610-11. Among the rules applied at this level is the rule that, in interpreting a statute, a court should neither insert in a statute what has been omitted nor omit what has been inserted.

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Cite This Page — Counsel Stack

Bluebook (online)
956 P.2d 184, 326 Or. 538, 1998 Ore. LEXIS 266, Counsel Stack Legal Research, https://law.counselstack.com/opinion/michels-v-hodges-or-1998.